Alberta Court of Queen’s Bench confirms that the Crown owes a duty of procedural fairness in determining whether the duty to consult is triggered

A recent Alberta decision has rejected the province’s argument that it does not owe a duty of procedural fairness to First Nations in determining whether the Crown’s duty to consult is triggered. This case provides a basis for First Nations to insist that the Crown consider Indigenous perspectives on whether the duty is triggered and provide reasons demonstrating that those perspectives have been considered.

In Athabasca Chipewyan First Nation v Alberta, 2018 ABQB 262 the Athabasca Chipewyan First Nation (ACFN) challenged a decision of the Alberta Consultation Office (ACO) – a branch of the Ministry of Aboriginal Relations – that the Crown owed no duty to consult regarding a proposed pipeline in ACFN’s Treaty 8 territory. The ACO determined that consultation with ACFN was not required because the pipeline was located outside of the area that Alberta normally required consultation with ACFN. This area was defined by maps developed by Alberta setting out consultation areas for each Alberta First Nation. Contrary to that map, ACFN provided evidence about the exercise of treaty rights in the vicinity of the pipeline, but the ACO nonetheless determined that consultation was not required.

While the Court confirmed that Alberta could rely on these maps in considering whether the duty to consult is triggered, the Court held that these maps are only one tool – if these maps are contested, the Crown must engage with a First Nation to determine whether the duty should nonetheless be triggered.

The Court set out what the Crown must do to provide procedural fairness to a First Nation before determining whether the duty to consult is triggered:

[115] It is not the Court’s role to dictate procedure; however, in the circumstances that unfolded in this case, it would be expected that once the ACO received the ACFN’s Statement of Concern from the AER, and understood that, contrary to the ACO’s preliminary determination, the ACFN believed there was a duty to consult, the ACO should have provided notice to the ACFN that the ACO would be making a final determination on the issue.

[116] The duty of procedural fairness would also require the ACO to outline what procedure it would undertake in making its determination, what evidence is required to meet the trigger test, as well as to convey the deadlines applying to the ACO’s procedure […]. Responsibility would then lie with the First Nation to bring forward evidence to establish that the trigger test is met…

[117] Finally, once the ACO has made its decision, the ACO would be expected to provide reasons for its decision that show it fully and fairly considered the information and evidence submitted by the First Nation…

This clarifies that the Crown cannot determine that the duty to consult is not triggered without (i) notifying a First Nation that the Crown intended to determine whether the duty to consult was triggered, (ii) providing the First Nation an opportunity to provide evidence that the proposed decision may impact the First Nation’s rights or interests and (iii) providing reasons demonstrating how the Crown fully and fairly considered the First Nation’s submissions.

This decision also reinforces that First Nations must remain proactive in monitoring projects proposed in their territories and seeking engagement from the Crown before decisions are made that may affect a Nation’s Aboriginal and Treaty rights. This is because these procedural rights to engage with the Crown regarding whether the duty is triggered will only arise if the Crown has notice of a First Nation’s view that consultation would be required.